AMICUS PROGRAM

PLAC's mission is to obtain fairness and balance in the common law of product liability.  The primary tool to accomplish this mission is PLAC's Amicus Curiae Program, often called "The heart and soul of PLAC."

PLAC believes the voice of product manufacturers deserves to be heard. We have a thoughtful point of view as it relates to products and believe it is crucial that the viewpoint of our manufacturers and suppliers be considered as the law is shaped. Our efforts also serve as a conduit for measured, intellectually-rigorous commentary on how rapidly changing areas of the law can create unintended consequences for product manufacturers, consumers and the vitality of our economy.

PLAC submits amicus briefs in state and federal courts in cases dealing with significant aspects of product liability law.  PLAC considers approximately 30 cases each year for amicus briefs, and accepts on the average about half of those cases.  We strongly believe that PLAC's Amicus Curiae Program is without peer.  Indeed, many outside sources have acknowledged the high standards of our program.  PLAC is committed to maintaining a world class amicus program.

PLAC's program is first rate because of the involvement of our entire membership.  While the focal point is Case Selection Committee (CSC), every member of PLAC can contribute by submitting cases for consideration.

Issues

Since 1983 PLAC has submitted more than 1,100 amicus briefs on behalf of our members. Issues that we have addressed include:

Recent Amicus Filings
  • Risk-Utility Test/Evidence of Industry Custom and Practice - California Supreme Court - Kim v. Toyota Motor Corp.
  • Statute of Limitations/Toxic Torts - California Supreme Court - Lopez v. Sony Electronics, Inc.
  • Preemption/Warnings - U.S. Supreme Court (petition) - Merck Sharp & Dohme Corp. v. Albrecht
  • Spoliation – Georgia Supreme Court - Koch v. Cooper Tire
  • Innovator Liability/Novel Theory/Warnings – California Supreme Court - T.H. v. Novartis Pharmaceuticals Co.
  • Evidence of FDA Clearance - U.S. Supreme Court (petition) - Huskey v. Ethicon, Inc.
  • Design Defect Test - CO Supreme Court - Walker v. Ford Motor Co.

Featured Amicus Briefs:

On April 2, 2021, PLAC filed a brief with the United States Supreme Court in Johnson & Johnson v Ingham, No. 20-1223. PLAC’s brief urges the Court to grant review of a decision by the Missouri Court of Appeals holding that a consolidated trial of the claims of 22 asbestos-in-talc ovarian cancer plaintiffs did not violate due process. The trial resulted in identical $25 million compensatory damages awards and an omnibus $4.05 billion punitive damages award.

The Missouri court concluded any jury confusion or prejudice was presumed cured by the court’s instruction that the jury decide each case individually - even though those cases involved different exposures to different products in different amounts over different time periods, different clinical courses, different results and different underlying risk factors, and were governed by the laws of twelve different states. PLAC’s brief argues due process imposes limits on the consolidation of civil—and especially mass tort—cases for trial, presenting an important issue that has not been, but should be, addressed by the Court. After the Court and Congress dramatically curtailed abusive class actions through decisions such as Amchem Prods. v. Windsor and Wal-Mart Stores v. Dukes, and the Class Action Fairness Act, plaintiffs’ counsel have increasingly turned to consolidated trials of multiple plaintiffs’ claims to obtain the same aggregated evidence and coercive benefits class actions offer. With multi-district litigation making up a majority of the federal civil docket, and with hundreds of thousands of tort suits filed annually in state courts, many of them also aggregated in MDL-like proceedings, opportunities for aggregated trials are rife. COVID-19 backlogs will only make consolidation more tempting for “efficiency” purposes.

Judicial decisions, experimental social science studies and studies of actual jury verdicts all demonstrate that consolidated trials pose severe threats to defendants’ fair trial rights. It is impossible for jurors to keep individual cases separate, the aggregate evidence makes the jury more likely to find both liability and causation, and the jury inevitably hears evidence that is inadmissible in some individual cases. This case was a paradigm example of such unfairness, and the Missouri court’s ruling that jury instructions cured any problems not only raises the important due process issue but exacerbates a split with other state and federal appellate courts. Hence, the Court should grant review.

PLAC’s brief was authored by David R. Geiger, Foley Hoag LLP, Seaport West, 155 Seaport Boulevard, Boston, MA 02210

David R. Geiger
Foley Hoag LLP


On March 4, 2021, PLAC filed an amicus brief in the United States Supreme Court in A.Y. v. Janssen Pharmaceuticals & Johnson & Johnson, No. 20-1069, supporting PLAC member Johnson and Johnson’s petition for review of a decision out of the Superior Court of Pennsylvania.

The brief argues a common-law claim that defendant drug manufacturer should have revised its FDA-approved labeling to add a warning pertaining to off-label use is impliedly preempted by reason of conflict with FDA regulations requiring FDA pre-approval of all statements in drug labeling that pertain to off-label uses.

Many of PLAC’s members, particularly FDA-regulated prescription medical product manufacturers, are subject to federally-imposed restrictions about what they can, and cannot, state in their product labeling. To avoid being sitting ducks for product liability litigation, these manufacturers depend on federal supremacy to preclude state-law liability for their compliance with federal requirements – here, FDA’s preclusion of statements in prescription drug labeling about “off-label” uses unless FDA itself requires them. Accordingly, this case presents an impossibility preemption situation under such cases as PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).

In addition, PLAC’s members cannot serve two masters imposing conflicting obligations. This case thus directly implicates another aspect of the “delicate balance” of FDA’s regulatory scheme recognized in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341, 348 (2001). FDA’s exclusive authority to require off-label statements is an issue the Supreme Court has never addressed.

PLAC’s brief was authored by James M. Beck of Reed Smith.

James M. Beck
Reed Smith


On February 16, 2021, PLAC and the Motor & Equipment Manufacturers Association filed a brief in the US Supreme Court supporting the cert petition filed by Volkswagen Group of America, Inc. and Robert Bosch LLC in Volkswagen Group of America, Inc. v. Environmental Protection Commission of Hillsborough County, S. Ct. No. 20-994. The case concerns preemption under the federal Clean Air Act of state and local government regulation of manufacturers’ post-sale, nationwide updates to vehicle emission software systems. PLAC’s brief asks the Supreme Court to grant certiorari and hold that the Act does preempt such state and local regulation. The brief highlights the vital role that the auto industry plays in the U.S. economy and the sheer number of post-sale updates to vehicle emissions systems manufacturers make every year. It further explains that allowing the Ninth Circuit’s decision to stand would permit a patchwork of emissions regulations across the country, lead to massive litigation, and increase costs for manufacturers and consumers.

On April 26, 2021, the Supreme Court called for the views of the Solicitor General.  We expect the Solicitor General to file its brief in August or September 2021.  

Nicole A. Saharsky of Mayer Brown LLP and her colleague Eric A. White authored the brief.

Nicole A. Saharsky
Mayer Brown

Eric A. White
Mayer Brown


On February 8, 2021, PLAC filed a brief in the United States Supreme Court in Trans Union LLC v Sergio L Ramirez addressing the issue of whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.

The Court granted review of a Ninth Circuit decision approving certification of a class of consumers who were provided copies of credit reports from Trans Union identifying the consumers as potential terrorists. Most of the reports had never been disclosed to anyone except the consumer, but the Named Plaintiff was denied credit in a public setting based on the incorrect information, and he cancelled a trip to Mexico out of fear he would be detained as a terrorist. As required by the trial court’s instructions, the jury awarded the same amount of damages to each class member.

In the Supreme Court, PLAC argues that the Ninth Circuit erred by holding that every class member had standing, and that the Named Plaintiff was typical of the class, simply because there was a “material risk” for all class members that the credit reports might one day be disclosed. Rather, a threatened injury must be “certainly impending” to constitute an injury in fact.

PLAC also argues that the Ninth Circuit erred by adopting a “least common denominator” approach to class certification, under which the typicality requirement is satisfied as long as at least one injury common to the class can be identified - in this case, the mere existence of inaccurate information in a credit report. This approach either denies due process to the defendant (because it is denied the opportunity to litigate the damage claims of less severely injured class members) or to class members (who are denied the opportunity to show they are more severely injured than the class representative). Besides, the issue of damages plainly was not common. If the absence of a class-wide measure of damages did not preclude class certification under Comcast, it at least required that damages be tried separately.

Oral argument is scheduled for March 30, 2021.

PLAC’s brief was authored by John M. Thomas of Dykema Gossett PLLC.

John M. Thomas
Dykema Gossett PLLC


On August 13, PLAC filed a brief in the U.S. Court of Appeals for the 7th Circuit in Burton, et al v Armstrong Containers, et al addressing the admissibility of expert testimony, jury instructions defining “injury,” and the nature of required causal connection between defect and injury. PLAC argued (1) it was improper to admit specific causation testimony based on epidemiological studies and post-injury cognitive performance tests; (2) it was improper to instruct the jury without defining “injury” or otherwise clarifying that elevated blood lead levels, without manifestation of any consequential symptoms, are not a compensable in jury; and (3) it was improper to fail to instruct the jury that the injury must be caused by the defendant’s tortious conduct rather than merely result from exposure to the product. Oral argument has been set of December 9, 2020.

PLAC member Alan Lazarus of Faegre Drinker Biddle & Reath LLP authored PLAC’s brief.


PLAC recently filed a United States Supreme Court brief addressing the most significant unresolved issue about due process limits on state courts’ exercise of personal jurisdiction. In its recent jurisprudence, and most notably Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), the Court made clear that a state may exercise specific jurisdiction over a non-resident corporation only when plaintiff’s claim “aris[es] out of or relat[es] to” defendant’s in-state conduct. In Ford Motor Company v. Montana Eighth Judicial District Court and Ford Motor Company v. Bandemer, (Nos. 19-368, 19-369 consolidated), in-state plaintiffs brought product liability suits against an out-of-state vehicle manufacturer for injuries suffered in an in-state accident even though defendant had not designed, sold or manufactured the vehicle at issue in-state. The Montana and Minnesota Supreme Courts separately found jurisdiction because plaintiffs’ claims “related to” defendant’s in-state sales of similar vehicles, maintenance of dealership arrangements and the like. PLAC’s brief argued that under both the holdings and rationales of the Court’s jurisdictional cases, a court may exercise jurisdiction consistent with due process only if defendant’s in-state conduct forms an essential element of its alleged liability to plaintiff. Oral argument is scheduled for October 7, 2020.

PLAC member David R. Geiger of Foley Hoag LLP and his colleague Stephen Stich authored PLAC’s brief.

Our efforts are intended to achieve balance and fairness to the application of existing law.   

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The committee is expanding its corps of brief writers. We especially want to encourage younger and diverse brief writers to apply to support our efforts. Please feel free to share this with colleagues who have the appropriate credentials and skillset. Please note that in order to be included on PLAC’s “short list” of brief writers, the attorney must be a member of the organization or in the process of applying for membership.

An application to become a brief writer is now on-line. Click here for the application.